[2025] UKUT 135 (LC)

The applicants are the registered proprietors of 23a, Park Avenue South, in Harpenden. It became a separate title as a result of a conveyance dated 14 September 1962 whereby Mr Edward Warfield of 23, Park Avenue South sold part of his land to Kenneth and Nerys Munro thus creating number 23a. The land was labelled “Building Plot” on the plan. The opening words of the conveyance stated that Mr Warfield was “hereinafter called ‘the Vendor’” and that Mr and Mrs Munro were “hereinafter called ‘the Purchasers’”. As is usual on a sale of part the conveyance contained a number of covenants on the part of the purchasers; clause 3 of the conveyance reads as follows:

“The Purchasers hereby jointly and severally covenant with the Vendor for themselves their successors in title owners or occupiers for the time being of the land hereby conveyed and for the benefit and protection of the Vendors adjoining property … so as to bind so far as may be the land conveyed into whosesoever hands the same may come at all times to observe and perform the following restrictions stipulations and conditions namely:-”

There follow six numbered sub-clauses. Number 1 reads:

“No building or other erection shall at any time be constructed upon the land hereby conveyed or any part thereof except one single private dwellinghouse in one occupation with or without garage summer house and usual or reasonable outbuildings.”

Sub-clause 2 prevents the carrying out of trade or business on the land, 3 prevents the stationing of a caravan on the land, 4 is a fencing covenant and an obligation to stop up a pipe running across the line, and 5 is a covenant to maintain and repair pipes marked on the plan, to pay the “meter rent” and to indemnify the Vendor and his successors in title in respect of those obligations. Thus two of the six are positive, not restrictive covenants. Only the final sub-clause 6 is the subject of the application:

“Not to erect on the land hereby conveyed any building other than a dwellinghouse which shall be a detached house of a general design and constructed of such types of materials and according to such plans and general specification as shall be submitted to and receive the reasonable approval of the Vendor such approval to be obtained before the building of any house on the land is commenced No windows except small windows fitted with opaque glass for a bathroom toilet or garage shall be constructed in any new building to be erected on the land hereby conveyed so as to overlook the Vendor's remaining property known as “Cox's” or the property to the north west side of the land hereby conveyed Any such small windows so permitted as aforesaid shall be so designed that the opening section of such windows are hinged at the top and open outwards for a few degrees only to the intent that they are so designed that they cannot be opened to give a view over the adjoining property of the Vendor on the south east side or the existing property on the north west side.”

The covenants in clause 3 were expressly made by Mr and Mrs Munro “for themselves their successors in title owners or occupiers for the time being of the land hereby conveyed”. The only references to the Vendor’s successors in title are in clause 3(5), where the indemnity is given to the Vendor and his successors, and in clause 4 where the Vendor “for himself and his successors in title” covenants to produce deeds (as is usual on a sale of part of unregistered land).

The objector, Mrs Fulton, is the registered proprietor of 23 Park Avenue South and the successor in title to the Vendor in the 1962 conveyance; number 23 is to the south-east of 23a. The reference in the text of the covenant at sub-clause 6 to the property to the north-west of the land conveyed is to 25 Park Avenue South; notice of the applicants’ application was served on number 25 but no notice of objection was received, and there is nothing in the 1962 conveyance to indicate that number 25 is entitled to enforce the covenant.

The application is for the covenant at sub-clause 6, which I will call the “approval covenant”, to be discharged under grounds (a), (aa), (b) and/or (c) of section 84(1) of the Law of Property Act 1925, alternatively for it to be modified under grounds (aa), (b) or (c). The applicants accept that the objector is the successor in title to the vendor’s land and so is entitled to the benefit of the covenants insofar as they still bind the land, but they argue that the approval covenant was personal to the 1962 vendor, Mr Warfield, and that therefore after his death the covenant can be discharged on ground (a) because it is obsolete.